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Saturday, December 17, 2011

Constitutional right to privacy

Right of privacy v. polygamy laws

As much as I find the practise of polygamy out of place in modern society, litigants in this case have a solid argument.

By JENNIFER DOBNER, Associated Press – 3 hours ago

SALT LAKE CITY (AP) — Attorneys for a polygamous family made famous on a reality television show on Friday asked a Utah federal judge not to block their challenge of the state's bigamy law.
Kody Brown and wives Meri, Janelle, Christine and Robyn filed a lawsuit in Salt Lake City's U.S. District Court in July.
The stars of the TLC show "Sister Wives" contend the law is unconstitutional because it violates their right to privacy — prohibiting them from living together and criminalizing their private sexual relationships.
Under Utah law, people are guilty of bigamy if they have multiple marriage licenses, or if they cohabitate with another consenting adult in a marriage-like relationship. Any couple of any sex living together in an intimate relationship is considered marriage-like under the law, and such a living arrangement would be considered a felony. Any couple of any sex living together in an intimate relationship could be considered guilty of a felony under the law.
Formerly of Lehi, the Browns and their 17 children moved to Nevada in January after police launched a bigamy investigation. The Browns practice polygamy as part of their religious beliefs.
U.S. District Court Judge Clark Waddoups heard oral arguments in the case on Friday in Salt Lake City and took the matter under advisement. It's not clear when he will rule.
For the case to go forward, the judge must decide the Browns have been harmed by the bigamy law.
In court, the Browns' Washington-based attorney, Jonathan Turley, said the family has suffered losses of income and been forced to move out of state because they were under investigation for bigamy.
They've also suffered "reputational harm" because the law labels the Browns' family a "criminal association," and because some Utah County prosecutors have said publicly that it would be easy for authorities bring charges because the Browns have already acknowledged felonies on national TV.
"This family was fearful of arrest ... they still are," Turley said. "It's why they are not here (in court) today."
Assistant Utah Attorney General Jerrold Jensen called the Browns' lawsuit "great TV drama" but said there's no real threat to the family, which has neither been arrested or charged with any crime.
Jensen said it's more likely the Browns were harmed by publicizing their lifestyle on television, not by actions taken by the state.
"The Browns have perceived that they will be prosecuted," Jensen said. "That is a misperception, at least at this point."
Jenson also said the Browns assume that an ongoing investigation by Utah County authorities is related to allegations of bigamy.
"It's over something else," Jensen said.
Utah County Attorney Jeff Buhman has not disclosed the nature of their investigation publicly and a message left for him Friday was not immediately returned.
Buhman's office has no stated policy related to the prosecution of polygamists.
On Friday, Jensen said the attorney general's office policy is to only file bigamy charges against a polygamist in connection with other crimes, such as underage marriages, child abuse or welfare fraud. A straight bigamy prosecution hasn't been filed in Utah for more than 50 years, Jensen said.
A check of state court records by The Associated Press, however, found at least two cases.
Bob Foster had three wives when he was arrested and charged with bigamy in 1974. He pleaded no contest and was sentenced to six months in jail. He was released after 21 days and ordered to serve five years of probation. A judge also said Foster was not allowed to live with his families. Foster died from cancer in 2008. He was still married to all three women.
Mark Easterday was arrested and charged with bigamy in 1999. Authorities were alerted to Easterday's multiple marriage as part of a custody battle during his divorce from his first wife. He ultimately pleaded no contest to adultery because the divorce was finalized before the bigamy case went to trial. Easterday was sentenced to probation.
Easterday, who left Utah and is currently married to two women, told The Associated Press he believes the Browns are right to fear a bigamy prosecution.
"I know from experience that they do prosecute," Easterday said. I think they should change the law over the entire country. Why it is that in some places a woman and a woman can be married, but a man can't have another wife?"
Polygamy in Utah and across much of the Intermountain West is a legacy of 19th century Church of Jesus Christ of Latter-day Saints. Mormons abandoned the practice of plural marriage in the 1890s as a condition of Utah's statehood and now excommunicates members found engaging in polygamy.
An estimated 38,000 self-described Mormon fundamentalists continue the practice, believing it brings exaltation in heaven. Most keep their way of life a secret.Typically, polygamous men are legally married to their first wives and wed subsequent brides only in religious ceremonies. The couples consider themselves "spiritually married."